The fall of the Coalition’s proposals for reform of the House of Lords has not come as much of a surprise.  In terms of constitutional reform, the House of Lords has graduated from a running sore to a running joke.  Constitutional lawyers can barely muster the strength to read the latest in the never-ending cycle of soon-to-be-defeated proposals.

That is not to say that the apparent death of the Draft Bill should be regretted.  Like all recent attempts to reform the Lords, it proposed a combination of elected and appointed members.  But even by the low standards of hybrid models, it was a particular stinker of a proposal.   There was plenty to object to in the Bill.

The process by which the members of the Lords would have been elected was complicated and opaque.  Voters could choose between voting for an independent candidate, or for a party, or for a party candidate.  The constituencies would have very large – perhaps dividing the country into twelve or so units – and multiple members would have represented each territory.  The system by which the votes cast would have translated into representatives was far from simple. To add to the complexity, a different electoral system would have applied to Northern Ireland, and a further, distinct, mechanism would have been invoked when a vacancy arose.

The appointed element would have consisted of not one but three separate categories.  There would have been regular appointees, Bishops, and ministerial members.  The inclusion of Bishops in the proposal was surprising.  Predictably, the mechanism by which Bishops would gain admissions to the Lords was convoluted.  Five Bishops got to sit as of right, but another seven would have been selected by the Church – presumably through a process to be determined by some Synod or other.  This statutory restraint is curious: it allows a body that is supported by only a portion of the population unfettered latitude to determine the manner of selection of some members of the state legislature.

The ‘ministerial members’ category was included to maintain the power that the Prime Minister currently possesses to appoint Ministers from outside of the Commons by putting them in the Lords.  The Prime Minister would have been limited to appointing eight Ministers to the Lords under this provision, but when they ceased to be Ministers they would stay on in the Lords, and the Prime Minister could then appoint a new ministerial member. It was hard to see what would limit the proliferation of ex-ministers of this type in the House: the shelf-life of Ministers can be very short.  One possible answer to this conundrum – proposed by Joint Committee on the House of Lords Reform Bill – was to allow ministerial members to sit in the Chamber but not vote.  This proposal, which sounds a bit like a payoff to a joke, was not adopted in the final version of the Draft Bill.  The category of ministerial members has the potential to confer a significant power of patronage on the Prime Minister and could significantly affect the balance of members in a reformed Lords.

Members of the Chamber would have been appointed for up to 15 years – a surprisingly long length of time.  Having served, they would not be permitted to stand for the Lords again, and, for four years, would not be permitted to stand for the Commons.  These restrictions would have ensured an independence of mind on the part of members of the Lords, but would have given the electorate little leverage to hold their representatives to account.  These members would have little incentive to maintain connections with the communities that voted for them.  It is interesting to speculate about the type of person who would be attracted to an office of this type.  They would have to be interested in politics – probably, their election would require the support of a political party – but not interested in a long-term political career.

These oddities were generated by the two contrary impulses that characterise Lords reform – and which have ensured that no proposal has secured consensus over the last century.  First, there is broad recognition of the value of a scrutinising second chamber.  The House of Lords does a good job, but it does a good job because it contains many who are not politicians but are rather experts in different areas of life.  Set against this, there is a reflex insistence that the Chamber must be elected.  The more or less articulated belief is that all elements of the legislature require some sort of democratic mandate.  In short, reformers want to keep the Lords as an expert apolitical revising chamber, whilst simultaneously reducing the expertise it possesses and politicising it.

It is this dilemma that may explain the otherwise peculiar failure of Labour to reform the Lords over their long period in office.  Whilst politicians feel constrained to argue for election to the Lords in public, in private many of them worry that this would destroy what is valuable in this institution.  Their actions often fall short of their words.

So what is to be done?  I have a few modest proposals.

For the time being, the push for an elected second chamber should be abandoned.  Far from being a rejection of democracy, an embrace of an appointed second chamber should be seen as a way of upholding democratic values.   All constitutions need elected bodies to determine the policies of the state, but it is a mistake to think that the more elected bodies a system has the more democratic it becomes.  Having too many elected bodies can harm democracy. In order to be a successful democratic body, the legislature must continue to engage with those who have chosen its members, even in between elections.  Voters must correspond and interact with their representatives.  If there are too many such bodies, citizens will become uncertain about which bodies they should engage with, and, as civic virtue is a finite commodity, may tire of the process.

In addition, democracy requires an effective legislature, one that can accomplish things.  Not only must the democratic institution speak for the people, it must also be able to act on their behalf.    A standing danger of Lords reform is that an elected second chamber will become too activist, and will prevent the Commons from setting the policies of the state.  If Parliament becomes deadlocked, the state will no longer be governed democratically; indeed, it will not be governed at all.  This question was considered with some care by the Joint Committee on the House of Lords Reform Bill.  This Committee warned that including statutory provisions to preserve the primacy of the Commons ran the risk of the judiciary intervening in the running of Parliament.  On the other hand, using conventions to shore up the relationship depends on the continuing willingness of the institutions to respect this balance.  The Committee’s proposal – the agreement of a concordat between the Houses – relies, at its base, on convention.  As the Committee recognises, it may prove hard to maintain this concordat over time as an elected Lords grows in confidence.

Lovers of democracy should be wary of making the second chamber elected.  Forty years ago a strong argument could have been made that this was needed; that the Commons was too powerful.  This argument is no longer attractive.  The Commons is hemmed in on all sides.  There are other democratic institutions – at the devolved and European level – that effectively check what the Commons can do.  And the courts now have a limiting role, too, using European Law and the Human Rights Act to shape and, sometimes, restrict Parliament’s statutes.  At present there is no need for another elected body in the constitution.

This is not to say that the Lords cannot be improved – but these improvements should go with the grain of the current body, making it work better as an appointed revising chamber.  The easiest, and most obvious, reforms would be to remove the hereditary peers and Bishops from the chamber.  Having an hereditary element is indefensible and, with the possible exception of 95 or so aristocratic grumblers, their removal would not be controversial.  The Bishops should also not sit as of right, though a number might properly return as appointed members.  Whilst the Church of England provides much harmless entertainment – and, in its discussion of gender roles and sexuality, a fascinating glimpse of the moral debates of a bygone age – it is hard to see why it should have privileged access to the legislature.

Attention should then turn to the process by which members of the Lords are appointed, a mechanism that was significantly improved by the last Labour government.  This should be crafted in order to fulfil the aims of the Lords as a scrutinising and revising chamber.  So, members should be appointed because of their capacity to undertake this task, and not because of their services to a political party.  An appointed chamber gives a chance to ensure that independent expertise is present in the system and, also, that groups which are not properly represented in the Commons are given a voice.  Addressing this question should be the focus of the next thrust of Lords reform.

Nick Barber is a Fellow of Trinity College, Oxford.

Suggested citation: N. W. Barber, ‘House of Lords Reform: A Look in the Long Grass’ UK Const. L. Blog (12 July 2012) (available at http://ukconstitutionallaw.org).